Del Castillo and Consales v Arsala and Arsala

[2021] NSWCATCD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Del Castillo and Consales v Arsala and Arsala [2021] NSWCATCD 16

Hearing dates:

12 March 2021

Date of orders:

5 May 2021

Decision date:

05 May 2021

Jurisdiction:

Consumer and Commercial Division

Before:

S Sutherland, General Member

Decision:

1. The tenant is to pay the landlord the amount of $366.00 immediately from the rental bond number F048791-X.

2. I direct Rental Bond Services to pay the landlords, Waghma Arsala & Jamil Arsala the amount of $366.00 from Rental Bond No. F048791-X. The balance of the rental bond is to be paid to the tenants Marco Consales and Myranne Del Castillo.

Catchwords:

LANDLORD AND TENANT – Claim on Bond – fair wear and tear - pre-existing condition of swimming pool

Legislation Cited:

Residential Tenancies Act 2010 (NSW)

Cases Cited:

Haskell v Marlow [1928] 2 KB 45

Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Myryann Del Castillo and Marco Consales (Applicants)
Waghma Arsala and Jamil Arsala (Respondents)

File Number(s):

RT 20/45735

Publication restriction:

Nil

REASONS FOR DECISION

1. This is an application by the tenants for an order concerning the payment of the rental bond. The rental bond in the amount of $2,760 is frozen with the rent bond service. The claim by the landlord can be itemised as follows:

Pool cleaning $93

Replace stove top $366

Replace garage remote $165

2. The tenants amended their claim to include compensation in the amount of $540. The tenant’s documents are marked, Exhibit A1 and the landlord’s documents are marked, Exhibit R1.

3. I will refer to the applicants as “the tenant/s” and the respondents as “the landlord/s”.

Jurisdiction

4. The entered a residential tenancy agreement on 17 September 2019 and this ended when the tenants vacated the on 5 October 2020. I find that pursuant to Section 6 of the Residential Tenancies Act, 2010 that I have jurisdiction to hear the claim.

Relevant legislation

5. Section 51 (3) of the Residential Tenancies Act, 2010 provides:

On giving vacant possession of the residential premises, the tenant must do the following—

(b) leave the residential premises as nearly as possible in the same condition, fair wear and tear excepted, and, if there is a condition report, as set out in the condition report applicable to the premises when the agreement was entered into,

Section 166 of the Residential Tenancies Act, 2010 provides:

Matters that may be subject of rental bond claim

(1) A landlord is entitled to claim from the rental bond for the residential tenancy agreement any of the following—

(a) the reasonable cost of repairs to, or the restoration of, the residential premises or goods leased with the premises, as a result of damage (other than fair wear and tear) caused by the tenant, an occupant or an invitee of the tenant,

Swimming Pool Cleaning and compensation for cleaning

6. It is common ground that at the commencement of the tenancy that the swimming pool included in the residential tenancy agreement was not clean. When the tenants commenced the tenancy the pool was not clean. The photographs of the swimming pool are included in the tenant’s documents, Exhibit A1. In his oral evidence, the tenant. Mr Consales told the Tribunal that the tenants moved in, as there were other prospective tenants, and it “was take it or leave it” as to the swimming pool in its current condition. The landlord states that the pool pump was fixed and the pool cleaned. The tenants dispute this claim and that the pool had leaves sitting at the bottom, it was green and there was algae and debris. A photograph of the pool is contained in the tenant’s documents, Exhibit A1.

7. The tenants are required to maintain the pool in accordance with the residential tenancy agreement, clause 57. The tenancy commenced on 17 September, 2019 and the cleaning was conducted on 27 November 2019. As Mr Consales told the Tribunal that the tenants were aware of the state of the pool at the commencement of the tenancy and it was, “take it or leave it”. I find that the cleaning and maintenance of the swimming pool was a requirement of the residential tenancy agreement. The claim by the tenant for $540 is dismissed.

8. The further claim by the landlord is for $93.00 for the swimming pool being left reasonably clean. The photograph is at Exhibit R1 [39] taken on 6 October 2020 and shows some debris and leaves at the bottom of the swimming pool at the end of the tenancy. The tenants deny that they left the swimming pool in that condition, although the tenants had vacated on 5 October 2020, a day before the photograph was taken. I do not accept that that the tenants did not leave the swimming pool in the condition depicted in the photograph.

9. Section 51 (3) of the Residential Tenancies Act, 2010 provides the following:

On giving vacant possession of the residential premises, the tenant must do the following—

(c) leave the residential premises in a reasonable state of cleanliness, having regard to the condition of the premises at the commencement of the tenancy,

10. The examination of the photographs of the swimming pool at the commencement of the tenancy and the photographs of the swimming pool at the end of the tenancy shows that the swimming was in better condition at the end of the tenancy than at the commencement of the tenancy. The tenants had paid $540 to get the swimming pool to a reasonable state of cleanliness. In my view, having regard to the condition of the swimming pool at the commencement of the tenancy and at the end of the tenancy, I am not satisfied that the swimming pool was left in an unreasonable state of cleanliness. The claim by the landlord for $93 is dismissed.

Replacement of glass top of stove $366

11. The landlord seeks the amount of $366 to supply and replace the glass on the stove. There is a photograph at Exhibit R1 [43] provides a photograph to shows a pot mark on the stove.

12. The tenant does not dispute that the mark was caused by her, however, she states it is her documents in Exhibit R1 titled Ceramic Stove that she does not know how it happened and did not notice the stove like that. The stove was used regularly for the preparation of meals.

13. In Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2006] NSWCA 224, the Court of Appeal relied on the interpretation of this phrase in Haskell v Marlow [1928] 2 KB 45 where the court stated that:

“[R]easonable wear and tear means the reasonable use of the house by the tenant and the ordinary operation of natural forces”. It follows that both natural forces and the actions of tenants can constitute wear and tear.

14. I have considered the photographs of the landlord, and that the scratches were not there at the time of installation and the commencement of the tenancy. The marks are significant and require the replacement of the glass on the stove. I do not find that the damage is the reasonable use of the house and the ordinary operation of natural forces. It was a scratching by the use of saucepans or pots. I find this claim proved.

Replace garage remote $165

15. The evidence of the tenant was that the garage remote was returned by without the middle button. The tenant in Exhibit A1 stated that when she received the remote control that it was in poor condition and that the landlord was to replace it, however this didn’t occur. The middle and right button did not work to open the garage door and that only the left button was used to open the door.

16. The tenant went to Mister Minit on 22 October 220 to repair the plastic button but was advised that the remote control needed to be replaced.

17. The evidence of the tenant was not disputed. I accept the tenant’s evidence and that the remote needed to be replaced and that there were pre-existing issues with the remote control. I am not satisfied to the civil standard that this claim is proved and the claim is dismissed.

Conclusion

18. The claim for the glass top of the stove is proven. All other claims are dismissed. The tenant is to pay the landlord the amount of $366.00 from the rental bond. The balance of the rental bond is to be paid to the tenants.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 04 August 2021